Lennox Drum Ltd. v. Ah-Hone, 2010 ONSC 4424
CITATION: Lennox Drum Ltd. v. Ah-Hone, 2010 ONSC 4424
DIVISIONAL COURT FILE NO.: 465/09
DATE: 20100810
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, SWINTON AND NORDHEIMER JJ.
BETWEEN:
LENNOX DRUM LIMITED
Applicant
– and –
JOSEPH AH-HONE, INDISTRIAL HEALTH AND SAFETY INSPECTOR and JOSEPH OUIMET, WORKER MEMBER OF THE LENNOX DRUM LIMITED JOINT HEALTH AND SAFETY COMMITTEE and the ONTARIO LABOUR RELATIONS BOARD
Respondents
Ryan J. Conlin and
Allison L. Taylor, for the Applicant
J. Malabar and
Evan Schiller, for the Respondent, Minister of Labour
Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: August 10, 2010
BY THE COURT (oralLY)
[1] This is an application for judicial review of the July 10, 2009 decision of the Ontario Labour Relations Board dismissing the Applicant’s appeals under s.61 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (OHSA), from two orders of a Ministry of Labour Inspector.
[2] The Applicant, Lennox Drum, cleans and refurbishes used industrial drums that are stored on its premises. This application focuses on the method of storage of these drums. On two occasions the inspector issued orders finding the Applicant in violation of O.Reg. 851/90, s.48, which provides that drums stacked on top of one another require parallel planks between the stacked rows of drums. The purpose of the Regulation is to protect the workers from potential injury. The Applicant appealed the orders to the Board.
[3] The Board concluded that the Applicant was in violation of the Regulation and upheld the inspector’s orders requiring compliance. Relying on s.2 of the Regulation, the Applicant argued that its method was as safe as the prescribed method. However, the Board concluded that the Applicant’s method did not vary from the prescribed method, using an alternative but equally safe method, but simply ignored the prescribed method. The Board found that the applicant was in essence seeking an unjustified exemption from compliance that was not in the interest of worker safety.
Standard of Review
[4] We conclude that the standard of review of the Board’s decision is reasonableness. The issue raised in this application is one of mixed fact and law involving a Board decision interpreting a statue within its mandate. Questions related to substantive workplace health and safety concerns engage the Board’s specialized core expertise. Section 61 of the OHSA provides that a decision of the Board is final. It is therefore a form of privative clause. Given all of these factors deference is to be accorded to the Board’s decision.
The Issue
[5] When storing the drums, the Applicant’s practice was to place empty drums on top of a first row of empty drums in a staggered fashion. As the drums are of uneven height, no planks are used between the rows of drums, as to do so would promote tipping and instability. Lennox chooses not to stack more than two drums on top of the other.
[6] The Applicant argued before the Board that although it does not use parallel planks as required by the Regulation, it uses a method of staggering in the stacking of its drums that is at least as safe as the regulated method, and is therefore a permitted variation of the Regulation allowed by O.Reg. 851/09, s.2. The variation provision states:
- In applying this Regulation, the composition, design, size and arrangement of any material, object, device or thing may vary from the composition, design, size or arrangement prescribed in this Regulation where the factors of strength, health and safety are equal to or greater than the factors of strength, health and safety in the composition, design, size or arrangement prescribed.
[7] The purpose of s.48 of the regulation is clearly to require a physical separation, whether by use of a material, object, device or thing, to be placed between tiers of drums in order to protect the workers working with and near the drums. While s.2 of the regulation permits a variation of an arrangement in certain circumstances, the Lennox method of stacking drums directly on top of other drums is not a variation of the arrangement prescribed as no physical separation is used. As the Board said at para.43:
Lennox Drum can choose not to stack at all. But it cannot say that it will simply not comply with the Regulation and choose its own method. It must ensure the health and safety of the worker in a structure that conforms to the Legislation.
[8] Thus the Board was not only reasonable but correct in its decision that s.2 was not available to Lennox.
[9] Given that conclusion, there is no need to address the issue of the Board’s treatment of the expert evidence.
[10] The application is dismissed.
J. WILSON J.
[11] For oral reasons given, the application for judicial review is dismissed. Costs fixed payable by the applicants to the respondent in the amount of $4,500.00, payable forthwith.
J. WILSON J.
SWINTON J.
NORDHEIMER J.
Date of Reasons for Judgment: August 10, 2010
Date of Release: August 13, 2010
CITATION: Lennox Drum Ltd. v. Ah-Hone, 2010 ONSC 4424
DIVISIONAL COURT FILE NO.: 465/09
DATE: 20100810
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, SWINTON AND NORDHEIMER JJ.
BETWEEN:
LENNOX DRUM LIMITED
Applicant
– and –
JOSEPH AH-HONE, INDISTRIAL HEALTH AND SAFETY INSPECTOR and JOSEPH OUIMET, WORKER MEMBER OF THE LENNOX DRUM LIMITED JOINT HEALTH AND SAFETY COMMITTEE and the ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
BY THE COURT
Date of Reasons for Judgment: August 10, 2010
Date of Release: August 13, 2010